Was Senator-Designate Kirk Lawfully Appointed to Fill the Massachusetts Vacancy?

           The Massachusetts legislature has now passed a law empowering the Governor to appoint a temporary replacement for the vacancy created by the death of Senator Ted Kennedy.   As I indicated in a prior post, the Constitution permits it to do this, notwithstanding the controversy over the fact that it had previously stripped the (then-Republican) Governor of this authority in 2004.  Massachusetts Governor Deval Patrick has signed the law and announced his appointment of Paul Kirk to serve as the temporary senator. 

            There appears, however, to be a glitch.  Under the Massachusetts Constitution, laws do not go into effect until 90 days after the Governor signs them, unless the legislature includes a preamble stating that “such law is necessary for the immediate preservation of the public peace, health, safety or convenience.”  Such emergency legislation, however, requires a two-thirds majority.  The temporary appointment  legislation initially contained this language, but it was removed when the bill’s sponsors were unable to get the necessary supermajority.  Therefore, the legislation would not ordinarily go into effect until sometime in late December, rendering it nearly meaningless (as the special election to fill the seat is scheduled for mid-January). 

            But wait, there’s more.  Governor Patrick today sent a letter to the secretary of the commonwealth stating that the temporary appointment law “is an emergency law and, in my opinion, the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith.”  He explains that “[t]he purpose of the Act is to ensure that the Commonwealth is fully represented in the United States Senate as it addresses issues of critical importance to the nation and the Commonwealth.” 

The Governor’s action was based on the following provision in the Massachusetts Constitution:  

If the governor, at any time before the election at which it is to be submitted to the people on referendum, files with the secretary of the commonwealth a statement declaring that in his opinion the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith and that it is an emergency law and setting forth the facts constituting the emergency, then such law, if not previously suspended as hereinafter provided, shall take effect without suspension, or if such law has been so suspended such suspension shall thereupon terminate and such law shall thereupon take effect: but no grant of any franchise or amendment thereof, or renewal or extension thereof for more than one year shall be declared to be an emergency law. 

Got it?  Me neither.  The Governor contends that this provision allows him to disregard the legislature’s failure to find an emergency and order the law to take effect “forthwith.”  However, according to the Massachusetts Republican Party, the provision “can only be used when a law is subject to a referendum” in which case “the law could be subject to suspension of its operation” under the referendum provisions of the Massachusetts Constitution.  In this case the law cannot be subject to a referendum petition or a request for suspension; thus, the Governor’s authority to ensure that the law “shall take effect without suspension” is inapplicable.  It claims that its interpretation is supported by a 1975 opinion of the Massachusetts Supreme Court, and has filed a motion for a preliminary injunction in state court; a hearing is scheduled for tomorrow morning. 

            If the Massachusetts courts rule on the merits of this claim, it will almost certainly be the end of the matter.  However, there is a reasonable likelihood that the courts will hold that the matter to be non-justiciable because, for example, the plaintiff lacks standing or the courts cannot grant any effective relief.  If that happens, there is another way of challenging the legality of Senator-designate Kirk’s appointment.  As in the case of Roland Burris earlier this year, if the Senate believes that Kirk’s appointment is potentially unlawful, it has the option to either refuse to seat him pending an investigation by the Committee on Rules and Administration, or to seat him without prejudice to its right to determine that he is ultimately not entitled to the seat (of course, Kirk’s brief term is likely to expire before the Senate would make a determination either way). 

            I don’t know who is right on the law here, but there appears to be a serious question as to the legality of Senator-designate Kirk’s appointment.  If the Massachusetts courts cannot or will not rule on  the matter, the Senate should review the question.

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